Local inspection by Commissioner is permissible when needed to clarify disputes, including injunction suits, at any trial stage.

Order XXVI Rules 9 and 10 of the Code permit local investigation where it is necessary to elucidate matters in dispute, and the Commissioner's report may form part of the evidence without amounting to impermissible evidence-gathering, so long as the court's adjudicatory function is not delegated. The court may entertain an application for local inspection before completion of trial if the report will assist in deciding the dispute or reduce oral evidence. A suit for injunction is not excluded from this power, including where inspection may clarify issues such as encroachment or boundary disputes. The HC quashed the refusal order, allowed local inspection, and directed measurement of the suit property.

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Issues: (i) Whether appointment of a Commissioner for local inspection amounts to impermissible collection of evidence; (ii) Whether an application for local inspection can be entertained before completion of the trial; (iii) Whether a Commissioner for local inspection can be appointed in a suit for injunction.

Issue (i): Whether appointment of a Commissioner for local inspection amounts to impermissible collection of evidence.

Analysis: Order XXVI Rules 9 and 10 of the Code permit local investigation where it is requisite for elucidating matters in dispute. The Commissioner's report and the evidence taken by the Commissioner form part of the record and are themselves evidence in the suit. The power is therefore meant to secure relevant evidence, not to engage in an impermissible exercise, so long as the Commissioner does not usurp the court's adjudicatory function.

Conclusion: Appointment of a Commissioner for local inspection does not amount to impermissible collection of evidence and is permissible in an appropriate case.

Issue (ii): Whether an application for local inspection can be entertained before completion of the trial.

Analysis: The scheme of Order XXVI is not stage-specific. The court may appoint a Commissioner either before or after commencement of trial, depending on whether the report is necessary for deciding the dispute, reducing oral evidence, or assisting an effective trial. The timing depends on the facts and the utility of the report in the proceeding.

Conclusion: An application for local inspection can be entertained before completion of the trial.

Issue (iii): Whether a Commissioner for local inspection can be appointed in a suit for injunction.

Analysis: The power to appoint a Commissioner is controlled by the need to elucidate the matter in dispute, not by the form of the suit. A suit for injunction is not excluded from the operation of Order XXVI if local inspection would assist in determining issues such as encroachment, boundary, pathway, or similar disputes.

Conclusion: A Commissioner for local inspection can be appointed in a suit for injunction.

Final Conclusion: The impugned order refusing local inspection was quashed, the application for appointment of a surveyor was allowed, and the trial court was directed to secure the report through local measurement of the suit property.

Ratio Decidendi: A court may appoint a Commissioner for local inspection at any stage where the report is necessary to elucidate the dispute, and such appointment is not barred by the nature of the suit or by the fact that the report will be used as evidence, provided the court does not delegate its adjudicatory function.

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